The term in loco parentis, Latin for "in the place of a parent"[1] refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from English common law, it is applied in two separate areas of the law.

First, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students' civil liberties.[1]

Second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.[2]

The in loco parentis doctrine is distinct from the doctrine of parens patriae, the psychological parent doctrine, and adoption.[3] In the United States, the parental liberty doctrine imposes constraints upon the operation of the in loco parentis doctrine.[3]

Primary and secondary education

Cheadle Hulme School, founded in Manchester, England, in 1855; adopted in loco parentis as its motto, well before the world's first public education act, the Elementary Education Act 1870. The school was established to educate and care for orphans and children of distressed parents.

In loco parentis had only precedent legal meaning for wards of court. The founding of Cheadle Hulme School, otherwise known as Manchester Warehousemen and Clerks Orphans Schools, became the first time the expression was used with legal standing in the educational field.

The first major limitation to this came in the U.S. Supreme Court case West Virginia State Board of Education v. Barnette (1943), in which the court ruled that students cannot be forced to salute the American flag. More prominent change came in the 1960s and 1970s in such cases as Tinker v. Des Moines Independent Community School District (1969), when the Supreme Court decided that "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." Adult speech is also limited by "time, place and manner" restrictions and therefore such limits do not rely on schools acting in loco parentis.

In the Tinker v. Des Moines Independent Community School District case the Supreme Court held that for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.

In New Jersey v. T.L.O. (1985) Justice White wrote: "In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment." The case upheld the search of a purse while on public school property based upon reasonable suspicion, indicating there is a balancing between the student's legitimate expectation of privacy and the public school's interest in maintaining order and discipline. However, in Hazelwood School District v. Kuhlmeier (1987) the Supreme Court ruled that "First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment" and schools may censor school-sponsored publications (such as a school newspaper) if content is "...inconsistent with its basic educational mission." Other student issues such as school dress codes along with locker, cell phone, and personal laptop computer searches by public school officials have not yet been tested in the Supreme Court.

Private institutions are given significantly more authority over their students than public ones, and are generally allowed to arbitrarily dictate rules. In the Kentucky State Supreme Court case Gott v. Berea College, it was upheld that a "college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student implicitly agrees to conform to such rules of government", while publicly funded institutions could not claim the same ability.

Criticism of the Tinker doctrine by Justice Clarence Thomas

Justice Clarence Thomas has argued that Tinker's ruling contradicted "the traditional understanding of the judiciary's role in relation to public schooling," and ignored the history of public education (127 S.Ct. 2634). He believed the judiciary's role to determine whether students have freedom of expression was limited by in loco parentis. He cited Lander v. Seaver (1859) which held that in loco parentis allowed schools to punish student expression that the school or teacher believed contradicted the school's interests and educational goals. This ruling declared that the only restriction the doctrine imposed were acts of legal malice or acts that caused permanent injury. Neither of these were the case with Tinker.

Higher education

Though in loco parentis continues to apply to primary and secondary education in the U.S., application of the concept has largely disappeared in higher education. This was not always the case.

Prior to the 1960s, undergraduates were subject to many restrictions on their private lives. Women were generally subject to curfews as early as 10:00, and dormitories were sex-segregated. Some universities expelled students—especially female students—who were somehow "morally" undesirable. More importantly, universities saw fit to restrict freedom of speech, on campus, often forbidding organizations out of favor or with different views from speaking, organizing, demonstrating, or otherwise acting on campus. These restrictions were severely criticized by the student movements of the 1960s, and the Free Speech Movement at the University of California, Berkeley formed partly on account of them, inspiring students elsewhere to step up their opposition.[4]